The Chauvin Appeal: How The Comments Of The Court and The Prosecutors Could Raise Challenges Going Forward

Below is my column in The Hill on two issues that arose on the final day of the trial of Derek Chauvin that could now feature prominently in any appeal. There will likely be an array of conventional appellate issues from the elements of the murder counts to the sufficiency of the evidence. Obviously, any appeal will wait until after sentencing, which will take many weeks. However, two issues were highlighted on the final day which could play a role in the appeal even if the odds are against Chauvin. The first on the denial of a venue change and the sequestering of the jury is very difficult make work on appeal. However, there are strong arguments to be made in this case.  I believe Judge Cahill should have granted the venue change and also sequestered this jury. It is not clear if the court polled the jury on trial coverage, particularly after the inflammatory remarks of Rep. Maxine Waters (D., Cal.). However, there are credible grounds for challenging how this jury may have been influenced by the saturation of coverage of the trial as well as rioting in the area.

Here is the column:

The final day of the Derek Chauvin trial in Minneapolis seemed at times to be a remake of the 1981 neo-noir film, “True Confessions.” Call it “True Concessions.” Judge Peter Cahill acknowledged that Rep. Maxine Waters (D-Calif.) may have given the defense a basis to overturn any conviction, while prosecutors seemed to drive a stake through the heart of their cases against three other officers charged in the death of George Floyd. And it all played out on live television.

Damage Below the Waters Line

Rep. Waters ignited a firestorm of controversy by flying to Minnesota to tell protesters to remain in the streets and fight for “justice,” to be “more confrontational,” despite days of rioting, looting and other violence. She said no verdict in the Chauvin trial would be accepted except a conviction for first-degree murder — a demand that might be a tad difficult to satisfy since Chauvin is not charged with first-degree murder. All of this as the jury literally headed off to deliberate.

Some of us immediately noted that Waters single-handedly succeeded in undermining not just the Chauvin case but her own case against former President Trump. Waters, one of several House members suing Trump for inciting violence on Jan. 6, is now his best witnesses against her lawsuit. Where she charged that Trump sought to incite violence and intimidate Congress, Waters is being denounced for inciting violence and intimidating the trial court.

One of those denouncing Waters was Judge Cahill, who declared in open court that “I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function. If they want to give their opinions, they should do so … in a manner that is consistent with their oath to the Constitution.” Calling such comments “abhorrent,” Cahill added this haymaker: “I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”

His statement was not just a criticism but a concession that Waters’ comments could not have come at a worse time or put the court in a worse position. Some of us have criticized Cahill — who has done an otherwise outstanding job — for not changing the trial’s venue or sequestering the jury. Those rulings came back to haunt him as protests grew before the trial and then exploded with the killing of Daunte Wright in nearby Brooklyn Center, Minn. One of the Chauvin jurors lives in Brooklyn Center, where rioting and looting occurred even before Waters flew in to throw gasoline on the fire.

Cahill denied a defense motion for a new trial but acknowledged that Waters’ comments magnified the appellate challenges in sustaining any conviction. Such statements alone are unlikely to overturn a conviction — indeed, such motions are notoriously hard to win — but Waters has made it far more difficult for prosecutors in the case. The tragic irony is that Waters could be used to overturn the very conviction she demanded. If that happens, it is unlikely that rioters will go to her home or burn businesses in her district. Those crimes will be focused in Minnesota but could spend across the country, too.

The danger for unrest may be greater due to the array of charges. It is not clear that a manslaughter conviction will satisfy protesters if it is accompanied by acquittals on murder. This was always a stronger manslaughter than a murder case. More importantly, adding the murder charges created a potential flashpoint for protests with any acquittal or later reversal on appeal. Moreover, while total acquittal seems unlikely, there is a possibility of a mix of acquittals and a hung jury that could ignite further rioting.

Prosecuting the Powerless?

If Waters was undermining any conviction of Chauvin, the prosecutors themselves seemed to be undermining any prosecution of the other officers. In one of the trial’s most surprising moment, prosecutor Steve Schleicher seemed to exonerate the other three officers in order to further incuplate Chauvin.  In his closing argument, Schleicher declared that Chauvin “had the power, and the other officers, the bystanders, were powerless.”

Prosecuting the powerless is not usually part of the oath of district attorneys. What was striking about Schleicher’s statement is that the cases against the other officers depend on a conviction in this case. As discussed previously, prosecutors structured the cases against all four officers like an inverted pyramid; Alexander Kueng, Thomas Lane and Tou Thao are charged as aiders and abettors to Chauvin’s alleged murder or manslaughter. If Chauvin is acquitted or the jury deadlocks on the charges, their prosecutions would then collapse.

Now, prosecutors have admitted that the three other officers were as powerless as bystanders on the street. The standard for aiding and abetting is itself not particularly demanding, since it covers anyone who “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” However, proving such a crime can be more difficult, particularly given a chaotic crime scene.

Schleicher’s concession adds to an already difficult case because the other officers did take steps that can be cited by their defense attorneys as seeking to help Floyd. The officers repeatedly called for an ambulance, and Lane, a new officer on the force, attempted to deescalate the situation. When Floyd pleaded, “Please don’t shoot me, man,” Lane replied: “I’m not shooting you, man.” When Floyd struggled not to get into a police car and said he could not breathe, Lane offered to sit with him, roll down the windows and turn on the air conditioning. It also was Lane — who had only been on the force a couple of days — who urged Chauvin to move Floyd from the knee-restraint position.

Schleicher’s words can be cited in defense pretrial motions to dismiss the case. While it will be more difficult to introduce such concessions from the prosecution into the actual trial of the three remaining officers, it could make it more difficult for this prosecution team to appear in those other cases— particularly Schleicher, who would have to argue the exact opposite to another jury of what he argued before this jury. And that never sits particularly well with a trial court.

Neither Waters nor the prosecution seemed concerned over how their words would impact this or later cases in the killing of George Floyd. Whatever benefit these statements may have brought, their true costs could be prohibitive as Minnesota struggles with the resulting uncertainties and unrest.

105 thoughts on “The Chauvin Appeal: How The Comments Of The Court and The Prosecutors Could Raise Challenges Going Forward”

  1. Jonathan: Frankly, I don’t think there is any serious basis for challenging Chauvin’s conviction on appeal. Neither change of venue, failure to sequester the jury or Maxine Waters’ untimely remarks would constitute a fundamental problem in the trial or its outcome. Now every one has take-aways from the trial. These are mine. First, Derek Chauvin was truly a “bad apple”. That’s why Chauvin’s fellow officers decided to break the police “code of silence” and testified against him. In addition, over his career Chauvin had been the subject of over 17 complaints against him for using excessive force. Some of those complaints involved the same tactic Chauvin used against George Floyd. But the Minneapolis police hierarchy never took any action against Chauvin. He believed he had the department’s back. Had Chauvin been disciplined by his superiors for any of the past violations of department policy perhaps Floyd would still be alive today. Even after Floyd was declared dead the police said only that Floyd died from a “medical emergency”. Always protecting their own. It took a brave 17 year old girl to stand up and video the entire over 9 minute incident. That video went viral and sparked the largest protests in US history over the killing of Black people. The nationwide and worldwide protests prompted the power structure in Minneapolis to charge Chauvin–now the first police officer convicted of the murder of Black person in the state’s history.

    Now I doubt Chauvin’s conviction is going to have any immediate positive affect on policing in Minneapolis or elsewhere. Just a stone’s throw from the Court House where Chauvin was being tried another Black man, Daunte Wright, was shot and killed by a 26 year old white veteran of the police department. Doesn’t seem like much has changed in policing in Minnesota since the murder of George Floyd. Change will not happen from within. That’s why AG Garland has just announced the DOJ is launching an investigation of the Minneapolis police department. Perhaps, a consent decree is the only to get the MPD’s attention. Trump stopped enforcing police department consent decrees while he was in power. Garland intends to reverse that practice.

    Finally, real “justice” over the treatment of Black people in this country will happen only when there is a reckoning over all aspects of racism, not just in police departments, but in housing, employment, medical care and in voting. It’s ironic that in Minnesota the Republican controlled state Senate is trying to push through new legislation to suppress the Black vote in the state. So while one white police officer is guilty of killing a Black man the other aspects of racial “justice” will have to wait for another day.

    1. Dennis:

      “Finally, real “justice” over the treatment of Black people in this country will happen only when there is a reckoning over all aspects of racism, not just in police departments, but in housing, employment, medical care and in voting.”

      Please identify any instances of uninvestigated and deterred racism in policing, housing, employment or voting against POC. I’ll wait. Then we can talk about reverse discrimination in those areas by LibDims against whites. Most of them happen on college campuses.

    2. Oh for god’s sake would you all just shut up about this BS that everything Republicans do is to “to suppress the Black vote”

      This is a lie. This is a DEMOCRAT political narrative. It is not THE TRUTH. Just shut up already.

  2. I assume you can provide all kinds of examples of convictions being overturned because some random Congressperson commented on the case pre-verdict? Is that different than Turley commenting on a case pre-verdict, given the murderous hordes who read you blog?

  3. Turley: you’re becoming sadly predictable. First, as to Waters’ comment: the jury was ORDERED not to watch or read anything about the case. The judge pointed out that, by law, everyone is required to assume they complied with his order. Even if they didn’t, who can say that anything Waters had to say could sway a jury. She is from California, and is not their congressional representative. Jurors were also instructed to decide the case based solely on the evidence they saw, read and heard in the courtroom. The court and parties are required to believe that they did just that.

    Next, Turley complains about the jury not being sequestered, denial of a change of venue and also about “saturation of coverage”, which militates against the requirement of sequestration or need for change of venue because the Floyd killing was a top news story all over this country and the world, for that matter. It wouldn’t matter where the case was tried. Again, this goes back to whether the jury complied with the Order not to read, listen to or discuss the case. Further, sequestration is a huge imposition on citizens, forcing them to live in hotels with no television, radio or computers, unable to be with their families and pets, not to mention a huge expense for the City of Minneapolis. Unless there was some possible threat to their safety and security, which there wasn’t, it would be prejudicial to Chauvin to sequester the jury because they could hold the loss of their personal freedoms against him. Assuming the jury followed the judge’s order, it was unnecessary in this case.

    Then, there’s the false equivalence of Trump’s Big Lie and the “Stop the Steal” campaign and Waters’ comments. Come on, Turley. There is absolutely no comparison between Trump, as an illegitimate POTUS, traveling the country at taxpayer expense on our Air Force One plane, lying about the election being stolen and Rep. Waters’ suggesting that people be confrontational about what Chauvin did to Floyd. She did not incite violence. She did not lie. She did not suggest rioting, looting or civil disobedience, unlike Trump.

    As to the other cops that were there and the comments in closing argument about them being powerless. They weren’t, and, if you need reminding, arguments of counsel are not evidence. They could, and should have called Chauvin’s superior officer. They had about 10 minutes to at least get a superior officer on the phone to order him to get off of Floyd. They could, and should, have tried to pull him off Floyd. However, if they had and Floyd survived, they would have gotten kicked off the force and maybe charged criminally. Such is the police culture in this country. And, you are absolutely making up facts when you claim that the “crime scene” was chaotic. People were upset, but polite. They stood there and kept telling Chauvin to get off of Floyd, but seeing that he was obviously killing the man, they didn’t physically try to stop him because the realized that Chauvin or one of his fellow officers would probably shoot them if they did. They would certainly have also been charged. Such is the police culture in this country, and it has to change.

    Lastly, IMHO one of Chauvin’s biggest obstacles to any hope of acquittal was his arrogance, his smugness, his absolute lack of any semblance of remorse for taking another person’s life. He absolutely reeked of arrogance and self-righteousness. Even if he thought he was in the right, a man still died because of him and his situation would have been helped if he had shown some compassion for the loss of life he caused, but he didn’t, and that no doubt hurt his case.

    1. NUTCHACHA knows sad – “Turley: you’re becoming sadly predictable.”

      It’s sad that NUTCHACHA is attracted to a man’s site to show him disrespect.

      NUTCHACHA attracts no one – no one visits NUTCHACHA’s site.

      It’s a sign of a dearth; a complete absence of natural discipline.

      In freedom, NUTCHACHA would show respect in order to get a job cleaning the floors of the likes of Professor Turley.

      NUTCHACHA relies on the brutality of the “dictatorship of the proletariat” under communism for her contrived, false “status” – she requires generational welfare, affirmative action, forced busing, quotas, food stamps, SNAP, WIC, TANF, HAMP, HARP, HUD, HHS, Obongocare, etc., etc., etc., to persist and survive in freedom.

      Whatever will NUTCHACHA do when Americans resume dominion over their country, when her false parade, her faux charade is concluded?

  4. Turley undoubtedly agrees with conservative media hosts Tucker Carlson & Rob Schmitt who insist jurors were intimidated by Maxine Waters, Biden & BLM & never actually stopped to consider the evidence & sworn testimonies of the witnesses when they unanimously voted to convict Chauvin on all charges.

    JT neglected to mention that on the final day of the trial, Judge Cahill said one Congresswoman’s opinion “really doesn’t matter a whole lot anyway.”

    In contrast, Trump has been attacking the Supreme Court for over 4 months, calling them “totally incompetent.” Trump refuses to accept the rulings in 57 court cases which his attorneys lost after the election. At Trump’s January 6th rally, Mo Brooks whipped up the crowd of Trump supporters by proclaiming “Today is the day we start kicking ass.” An hour later, Trump supporters stormed the Capitol to try to stop Congress from certifying Biden’s victory. The next day, 10 Trump cabinet members & appointees resigned in protest of Trump’s actions on January 6th.

    Yet Turley is presumably more outraged at Maxine Waters for publicly stating that the evidence proved Chauvin is guilty as charged.

    We will eventually discover the accuracy of Professor Turley’s prediction that a future court will toss out Chauvin’s convictions.

    1. Maxine Water’s opinions “don’t matter a whole lot” to the Judge, nor to me, but that’s ignoring the real issue, which is the impact of her statements on the riotous crowd. And in turn, the concerns of the jurors who live in that community.

    2. “Trump refuses to accept the rulings”

      I guess Legal voter, patriotic American isn’t so American and doesn’t believe that each person is entitled their own opinions. Trump has rendered his opinion that the election had lawless components. That is true.

      1. Yes, multiple court rulings established that Trump was denied justice and Americans’ civil rights were violated in several Democrat districts, where legal standing was recognized, and actionable grievances were not summarily dismissed.

      2. Trump’s “opinions” are not facts. Trump’s “opinions” are based on his disabling mental illness, called narcissism. He will never accept the truth, which is that: 1. most Americans did not vote for him in 2016; 2. most Americans never approved of him in 4 years’ of occupying our White House; 3. Polls consistently showed he would lose to Biden; and 4. Trump did lose to Biden. In his brain, the only possible explanation must be fraud. In his brain, it’s not possible that the American people rejected him, especially for Joe Biden and Kamala Harris, whom he considered to be inferior. Another product of his mental illness are delusions of grandeur. Just like when he hosted “The Apprentice”, pretending to be a self-made billionaire, which we now know to be untrue. He is someone who was supported by his father well into his forties, and after his father wasn’t around to bail him out any more, failed at multiple businesses, taking at least 6 bankruptcies. He is now multiple millions of dollars in debt.

        Trump was desperate to preserve his massive ego, even trying to get the Georgia Secretary of State to convert valid votes for Biden to him, and then pressuring the GA Governor and Secretary of State. He demanded and got multiple recounts, re-recounts and signature-match validations, all of which proved he lost. It wasn’t enough. He got attorneys to file multiple baseless lawsuits that were dismissed because they lacked facts. Courts did listen to the arguments, but dismissed the cases because they had no evidentiary foundation. They thought they could make up lies, demand that courts give an injunction, and then try to prove their case, which isn’t how it works. It still wasn’t enough. He went on taxpayer-funded post-election “Stop the Steal” rallies, calculated to get his disciples to somehow get the certified election results overturned. That also wasn’t enough, so he tried to bully Pence into refusing to accept the certified vote results. That didn’t work, so in a last ditch effort to salvage his ego, he called for the rally at the Capitol, promising he would be there to lead them (which was a lie) and that it would be “wild”. He thought that storming the Capitol would intimidate members of Congress into rejecting valid certified voting results. That didn’t work either, but he still got a few Republican shills to “object”, which is baseless. Members of Congress cannot overturn certified vote results. He still won’t shut up about it. He never will. His ego prevents accepting this truth.

        Anyone who continues to believe Trump’s claim that he not only won, but won by a landslide, is delusional. The majority of the American people never wanted Trump and never approved of him. He was predicted to lose, and he did lose, and there is absolutely no evidence of widespread fraud. Trump is wrong, but just like him, his disciples will never accept the truth no matter what quantity of evidence is provided. Even if states let outsiders paw through confidential voter registrations and voting records, they’d still scream “fraud”. So, to prevent the American people from having a say and to allow valid votes to be thrown out when they don’t go the way they want, Republicans in multiple states have proposed or enacted legislation to try to limit early voting and voting by mail, to make it a crime to give someone waiting in line to vote a bottle of water or food, take overs of county election boards and reversal of their decisions by the state and multiple other restrictions and barriers to voting that will disproportionately affect communities of color. That’s Trump’s legacy. A crook who cheated his way into office for the power and glory and who tried to do it again, but failed.

        1. “Trump’s “opinions” are not facts.”

          That is true. Opinions are not facts. That is why when you call him a liar for his opinions you are demonstrating your ignorance of what lies are.

          (the rest of the post was left unread)

    3. Legal voter, patriotic American:

      You forgot “low information citizen” in your moniker and I’m betting you really dislike the country. Just off the top of my head: Those 57 lawyers weren’t all “Trump’s lawyers”; Mo Brooks also said: “I also have called for aggressive prosecution of all of those who forcefully and illegally broke into the U.S. Capitol, regardless of their political persuasion. Peaceful protest is an American’s Constitutional right. Violence is not.” Maxine didn’t merely say the evidence proved Chauvin was guilty, she said: “We’ve got to stay on the street and we’ve got to get more active, we’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.” She then doubled down on that sentiment when confronted with it’s plain inciting meaning.

      You did nail the last sentence though, so its a start.

  5. The Left is Insane. Celebrating the conviction of anyone is base. It’s like the Salem Witch Trials of yore. A spot of Tea anyone?

    Just a few quotes from Franz Kafka, “The Trial”

    “it is not necessary to accept everything as true, one must only accept it as necessary.’ ‘A melancholy conclusion,’ said K. ‘It turns lying into a universal principle.”

    “You must not pay too much attention to opinions. The written word is unalterable, and opinions are often only an expression of despair.”

    “The right understanding of any matter and a misunderstanding of the same matter do not wholly exclude each other.”

  6. I was not on the jury so I cannot determine whether the verdict was correct. However, we know this was a show trial meant to appease certain people because of the reasons set forth by Professor Turley. As Professor Dershowitz recently stated, the conduct displayed by the officials and the mob are tactics used by the KKK in the 30s to convict innocent black men and acquit guilty white men. And this is 2021!

    1. I read that somewhere as well but I don’t remember where.

      Isn’t it amazing that the left today fights MLK’s character over color and uses the same tactics as the KKK. Makes one wonder who the original KKK were. Democrats.

      1. From white people (i.e. low-information attribute) to people of white (i.e. racist designation).

  7. Chauvin is a “frog” which is another way of saying he is of French descent. There were frogs of that name involved in the Holocaust in WWII in consort with the Germans

  8. I do not believe Chauvin’s actions represented a premeditated killing.

    A person gets into a car drunk and kills someone. Is that premeditated? Which is more appropriate, murder or manslaughter?

    I wonder, if Chauvin acted exactly the same to an identical black man, but the man didn’t die if any charges would have been made against Chauvin.

    There is no question (without suitable explanation never provided) that Chauvin did something wrong. I don’t think the verdict would have been the sane under other conditions.

    1. I don’t believe Chauvin intended to kill. Instead, he was a victim of his own arrogance. He was surrounded by a crowd yelling at him, including a 9 y/o child telling him to get off Floyd, and he wasn’t about to let “civilians” and children tell him what to do. So he stayed on Floyd for an unnecessarily long time, to let the onlookers know who was boss. We’ll never know if Floyd would have died anyway, due to the fentanyl combined with his underlying health problems, but the video produced horrific optics that were the undoing of Chauvin.

      1. “I don’t believe Chauvin intended to kill”

        Tin, I have a hard time using the word murder when I believe the person did not intend to kill, but I believe that fits the definition of second degree. However, Chauvin was a cop doing his job and using techniques he was trained to use by the state. I have trouble as well with the fact that resisting arrest was involved along with the heat of a fight, distraction by a crowd and the fact I do not believe his hold was the cause of death.

        Do I think Chauvin should be in any police department? No, or at least no based on the little I know.

        The optics were terrible and that and the rioting I believe has a lot to do with the second degree charge. If during dangerous situations we place the optics ahead of the job we will fail in what we do. We did that with our servicemen abroad under the Obama administration and that killed a number of servicemen that would otherwise be alive today.

        I am critical of a lot of things that were done but one of things I would focus on would be the initial intervention by the police. That is when a plan of action might have been better thought out and a better plan might have been able to be found.

  9. The trial judge blew it when he failed to sequester the jury the entire trial. Jury intimidation and the nuttery of Mad Maxine raise interesting points on appeal. My guess is the appellate judges read the paper/watch the slanted news and won’t muster a majority willing to order a new trial but hopefully even cowards won’t be cowardly all the time.

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